In the summer of 2011, the Obama administration announced that it had captured a Somali pirate with ties to Al Qaeda, Ahmed Warsame, and planned to prosecute him in federal court after a military interrogation aboard a U.S. ship. Republicans were furious and accused Obama of being soft on terrorism. Senator Lindsey Graham scolded the administration that “when you capture an enemy prisoner the last thing you think of is prosecution” and Senator Mitch McConnell said that it was “truly astonishing that the administration is determined to give foreign fighters all the rights of U.S. citizens regardless of where they are captured.”
Three years later, Republicans are once again accusing the Obama administration of being weak on terrorism for the decision to try a suspected terrorist in federal court. With the capture of Ahmed Abu Khatalla, the alleged mastermind of the Benghazi attack, Senator Graham is once again accusing Obama of being weak on terror for failing to try the suspect in the military commissions at Guantanamo Bay. Congressman Trey Gowdy, the Republican leading the Benghazi investigation in the House, has said that the attack was an “act of terror tantamount more to a war than a criminal-code violation,” and that Obama has downplayed the significance of the attack.
While this Republican politicization of Benghazi has become a rallying cry for their base, these attacks—like the others—lack any merit.
While Graham and his colleagues warned in 2011 that trying Warsame in federal court would prove dangerous, he ended up becoming a major intelligence asset and the prosecution went smoothly. Warsame was interrogated under Department of Defense supervision on a U.S. naval ship without receiving any Miranda warning, before being turned over to the Justice Department for prosecution. He “produced a great deal of intelligence,” according to Foreign Policy. Not only did he plead guilty to the charges but he became a cooperating witness and helped to secure a guilty plea with a 30-year sentence in the case of Mohamed Ibrahim Ahmed, a Swedish resident who had gone through extensive training with Al Shabab in Somalia. In an earlier raid into Libya, U.S. Special Forces captured Abu Anas Al-Liby, a suspected Al Qaeda operative, and interrogated him on a Navy ship before sending him to federal court for prosecution. The Obama administration was careful; it got the intelligence through military interrogation before turning him over to federal prosecutors.
Contrary to Senator Graham’s suggestion, the Obama administration has created a careful model of allowing for interrogation of a suspected terrorist under military custody and then transferring him over for prosecution in a federal court. This approach allows for the collection of intelligence and the ultimate prosecution with the full resources of federal courts.
While Republicans like to portray federal courts as too weak to handle suspected terrorists, the reality is that they have a proven track record for securing convictions in these cases. In case after case, skilled federal prosecutors have won convictions of suspected terrorists. Preet Bharara, the U.S. Attorney for the Southern District of New York, remarked after one conviction: “As we have seen in the Manhattan federal courthouse in trial after trial—of Ahmed Ghailani, of Suleiman Abu Ghayth, and now of Abu Hamza—these trials have been difficult, but they have been fair and open and prompt.” Prosecutors have even been able to gather intelligence from suspects; in the trial of Abu Ghaith, a confidante of Osama Bin Laden, prosecutors produced a 22-page memorandum with all of the information that Ghaith shared both before, and after, he had an attorney.
Of course, Republicans will continue to try to politicize this trial as they attempt to skew the facts about Benghazi to try to skewer the Obama administration and Hillary Clinton’s tenure as Secretary of State. Their attempt to push this case into a military commission is not only misguided, it is dangerous. In depicting disarrayed groups who perpetuate terrorism as unified actors in a “war” on the United States, we send a signal that bolsters their credibility. Professors Philip Carter and Deborah Pearlstein have warned that, “lumping together otherwise scarcely connected terror groups under the banner of al Qaeda 'associates'—or 'associates of associates'—can foster alliances where they might not otherwise exist, and inhibit the development of more individualized counterterrorism strategies aimed at isolating, disrupting, and dismantling specific terror groups.” What happened in Benghazi was a tragedy but it is dangerous to depict Ahmed Khattala as a warrior and boost the credibility of his associates in Libya. Republicans are playing dangerous games with our national security in trying to score political points by pushing to have him tried in the military commissions. We play into the hand of these small groups when we put them into a military commission; it “empowers them, feeds their propaganda efforts, and enables them to attract funds and recruits in their efforts against us.”
The Obama administration’s balanced approach is spot-on, and hackneyed criticism from Republicans like Senator Graham once again misses the mark. This process of conducting an interrogation by the military and then putting the suspect in federal court allows for the military to do what it is best at and for prosecutors to do what they are best at. Republican attacks here are to be expected, but they have been proven wrong time and time again.
Sam Kleiner is a fellow at the Yale Law Information Society Project.